United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Marianna, Florida, (Respondent) and American Federation of Government Employees, Local 4036 (Charging Party/Union)

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 4036
(Charging Party/Union)

AT-CA-01-0037

_____

DECISION AND ORDER

August 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

The Judge found that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with a final and binding arbitration award. For the reasons discussed below, we find that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we dismiss the complaint.

II. Background

In United States Dep't of Justice, Fed. Bur. of Prisons, Fed. Correctional Inst., Marianna, Fla., 56 FLRA 467 (2000) (BOP, Marianna), the Authority denied the Respondent's exceptions to an award, in which the arbitrator found that the Respondent violated the parties' agreement by allowing temporary vacancies to occur in correctional officer posts. To remedy the violation, the arbitrator ordered the Respondent to "vacate posts only for good cause and not on a routine basis for administrative convenience." Id. at 468. The arbitrator did not define what he meant by "good cause" or "administrative convenience."

In finding that the award was not deficient, the Authority rejected the sole argument advanced by the Respondent -- that the award affected the exercise of its right to assign employees under § 7106(a)(2)(A) of the Statute. The Authority found that the award did not require the Respondent to hire additional employees or fill vacant positions, did not limit management's ability to determine the qualifications and skills necessary for employees to perform their duties, and did not prohibit the Respondent from vacating posts, as long as the posts were vacated for good cause and not on a routine basis for administrative convenience. 56 FLRA at 470.

The Authority also noted that the award did not mandate any specific actions the Respondent was to take to comply with the award and did not establish any criteria as to what would constitute "good cause" for vacating a post. As examples of actions that the Respondent could take, the Authority stated that the Respondent could "cancel[] annual leave and training, use supervisory and management personnel to fill [vacated] positions, use overtime assignments, or some other action in order to comply with the award." Id.

Subsequently, the Union filed an unfair labor practice charge alleging that the Respondent failed to comply with the award by continuing to vacate correctional officer posts. A complaint was issued alleging that the Respondent's conduct constituted a violation of the Statute.

III. Judge's Decision

The Judge stated that compliance with a final and binding award depends, in part, on the clarity of the award. Finding the award in this case to be ambiguous, the Judge applied the standard set forth in United States Dep't of the Treasury, IRS, et. al., 25 FLRA 71 (1987) (Dep't of the Treasury). According to the Judge, the issue presented was whether "the Respondent's actions regarding the vacating of correctional service posts [were] consistent with a reasonable construction of the [a]rbitrator's award." Judge's Decision at 10.

The Judge concluded that the Respondent's actions were not consistent with a reasonable construction of the award and, as such, that the Respondent violated the Statute. In reaching this result, the Judge found that the number of vacated posts "does not appear to have decreased any since the [a]rbitrator's decision became final and binding." Id. at 11. The Judge found, based [ v59 p4 ] on the parties' stipulation that September 2000 was a representative month, that 175 posts had been vacated during that month, yielding, on average, 5.83 vacant posts per day. While acknowledging "a substantial increase in overtime costs at the facility since June 2000[,]" the Judge stated that it was impossible to identify what portion of the overtime was directly related to filling vacated positions. Id.

The Judge also found that "no real changes" were put into effect subsequent to the Authority's decision in BOP, Marianna. Id. In this regard, the Judge found no evidence that the Respondent attempted to meet with the Union to discuss the vacating of posts, despite the fact that the arbitrator contemplated that the parties would do so.

The Judge concluded that the Respondent's conduct "indicates that vacating posts has become an administrative convenience that the Respondent is unwilling to change." Id. at 12. The Judge ordered the Respondent to comply with the award by vacating correctional posts only for good cause and not on a routine basis for administrative convenience.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent states that the standard by which its compliance with the award should be determined is whether its construction of the award is reasonable. Citing Dep't of the Treasury, 25 FLRA 71, the Respondent asserts that its construction of the award "is reasonable and in accordance with applicable rules and regulations." Exceptions at 6. As such, the Respondent maintains that it complied with the award.

The Respondent further notes that the arbitrator did not define the terms "good cause" and "administrative convenience" and did not specify any actions that the Respondent was required to take in order to comply with the award. The Respondent notes that, subsequent to the award, the amount of overtime "almost doubled" and that posts are vacated "when there is an institutional emergency, or where staff is utilized in other areas to provide that security which is needed for the safety of the staff." Id. at 4. The Respondent states that determining what constitutes "good cause," the standard used by the arbitrator, involves the exercise of management rights. In this connection, the Respondent asserts that the arbitrator "intended [management] to retain its management rights under § 7106 when it chose to vacate posts." Id. at 7 (citing Joint Exh. 3 at 17). In support, the Respondent notes that the arbitrator expressly declined to fault management's judgment when it vacated certain posts because, in the arbitrator's view, "`management determined this was appropriate . . . .'" Id.

B. General Counsel's Opposition

The General Counsel argues that the Respondent's reliance on management's rights as a basis on which to vacate posts, and its expressed reasons for vacating posts, were rejected by the arbitrator and the Authority in BOP, Marianna. The General Counsel agrees that the arbitrator did not specify what constitutes good cause but states that, by sustaining the grievance, the arbitrator rejected the Respondent's reasons for vacating posts. The General Counsel also claims that, at the unfair labor practice hearing, the Respondent "conceded that . . . it continued to implement internal security practices and assign work as it did before the [a]rbitrator's award." Opposition at 11. The General Counsel maintains that "based on the current increased rate of vacated posts, it is clear that the Respondent has failed to comply with the award in this regard." Id. at 10.

The General Counsel also states that, if there is any ambiguity in the award, the Authority should not interpret the award. Rather, the Authority should require the parties to seek clarification from the arbitrator.

V. Analysis and Conclusions

As the Judge noted, the standard for determining whether an agency has adequately complied with an arbitration award depends, in part, on the clarity of the award. See United States Dep't of the Treasury, IRS, Austin Compliance Ctr., Austin, Tex., 44 FLRA 1306, 1315 (1992). When the award is ambiguous, the test of compliance is whether the agency's action is consistent with a reasonable construction of the award. See United States Dep't of Justice, Fed. Bur. of Prisons, United States Penitentiary, Marion, Ill., 53 FLRA 55, 60 (1997). See alsoDep't of the Treasury, 25 FLRA at 72 ("the adequacy of compliance with an arbitration award will be determined by whether the [r]espondent's construction of the award is reasonable, which would depend on whether the construction is consistent with the entire award and consistent with applicable rules and regulations").

The Judge correctly found that the award in this case is ambiguous. As noted above, the arbitrator did not define the meaning of the terms "good cause" and "administrative convenience." Further, the arbitrator did not provide specific instructions on what actions the Respondent was required to take to comply with the award. Additionally, while finding that the Respondent's failure to fill all posts constituted a per se violation [ v59 p5 ] of the parties' agreement, the arbitrator also refused to fault management's judgment in keeping certain posts unfilled, a finding that is at odds with a per se violation of the agreement. [n2]

In determining whether a judge's factual findings are supported, the Authority looks to the preponderance of the record evidence. SeeAir Force Materiel Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1092, 1093 ((1998) (Authority looks to whether "the [j]udge's factual findings and the record as a whole" support the judge's conclusions). See alsoUnited States Army Armament Research Development and Engineering Ctr., Picatinny Arsenal, N.J., 52 FLRA 527 (1996) (Authority reviewed entire record in affirming judge's determination that respondent complied with award). In addition, the General Counsel maintains the burden of proving all of the allegations of the complaint. See United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 360, 370 (1998), petition denied, NAGE v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), (the General Counsel bears the burden of establishing each and every element of an alleged unfair labor practice in order to establish a violation of the Statute).

The Respondent excepts to the Judge's findings that its actions were not consistent with a reasonable construction of the award and to the Judge's conclusion that its conduct violated the Statute. See Exceptions at 5. The Judge's findings and conclusions to which the Respondent excepts were based on her review of the entire record. On review of that record, we find that it does not support the Judge's determination that the Respondent failed to comply with the award. Consequently, we find that the General Counsel has not established that the Respondent violated the Statute.

First, the Judge found that the number of vacated posts did not appear to have decreased after the award became final and binding on June 28, 2000. In reaching this result, the Judge relied, in part, on the parties' stipulation that 175 posts were vacant during September 2000. The Respondent testified, however, and the record reflects, that a significant percentage of these posts --approximately 25 percent, or 46 posts -- were vacant at the Shawnee special housing unit in September because no inmates were being housed there at the time. Clearly, keeping posts unfilled in this circumstance was for good cause. Furthermore, although the General Counsel challenged the reliability of the Respondent's testimony by asserting that some posts at Shawnee were staffed during September, the General Counsel did not refute the Respondent's testimony that the employees may have been utilized elsewhere in the Shawnee unit. See Transcript (Tr.) at 129; Resp. Exh. 2 at 33 (citing a correctional officer whose position in the housing unit was vacated but who was then reassigned to "Shawnee Control").

The Judge's determination that the number of vacated posts has essentially remained the same also failed take into account record evidence that showed that, at the time of the arbitration hearing, the inmate population consisted of 1018 persons, with 142 correctional officers, while at the time of the unfair labor practice hearing, the inmate population had greatly increased to 1505 persons, with a proportionately much smaller increase to 150 officers. See Jt. Exh. 3 at 16; Tr. at 70. It stands to reason that with a substantially larger inmate population and only a handful of additional correctional officers, the demands on the Respondent -- and the considerations attendant to staffing its posts -- changed dramatically. More importantly, however, even if the number of vacated posts remained the same, this fact does not lead to the unalterable conclusion that the Respondent's reasons for vacating the posts were not for good cause, the standard set forth by the arbitrator. [n3]

The Judge also failed to appropriately consider the evidence surrounding the actual increase in overtime expenditure for correctional services after the award became final and binding. While recognizing that the amount of overtime had nearly doubled subsequent to the Authority's decision affirming the award, the Judge found that it was impossible to identify how much of that overtime was directly related to the filling of [ v59 p6 ] vacated posts. However, the record is clear that the increase in overtime was used to fill vacated correctional officer posts. For example, referring to an exhibit depicting the substantial increase in overtime, the Respondent's warden was asked whether the increase was "just correctional officers filling posts?" Tr. at 60. The warden responded "[f]illing correctional posts, yes." Id. In addition, when asked what actions the Respondent had taken after the award became final and binding, the Respondent replied, "We're paying more overtime." Id. at 117. [n4]

Although the General Counsel attempted to show that posts were being vacated to reduce overtime, the evidence showing an actual increase in overtime establishes otherwise. [n5] The Respondent's use of overtime to fill vacated posts is precisely the sort of action the Authority suggested the Respondent could take in BOP, Marianna and, as such, further demonstrates the Respondent's compliance with the award. See 56 FLRA at 470 (the Authority stated that the use of overtime assignments was one of the actions the Respondent could take to comply with the award).

Finally, the record shows, contrary to the Judge's finding that no real changes were put into effect after the award became final and binding, that the Respondent took other actions after issuance of BOP, Marianna to comply with the award. Uncontradicted testimony shows that, in the fall of 2000, the Respondent adopted the Union's suggestion to create additional medical escort positions. This is significant because one of the bases of the Union's grievance was that positions were "being vacated to fill vacancies created by . . . medical escort trips . . . ." Joint Exh. 2 at 1. Once again, this is precisely the sort of "other action" the Authority suggested the Respondent could take to comply with the award. See 56 FLRA at 470.

In sum, for the reasons set forth above, we find that the General Counsel has failed to establish that the Respondent violated the Statute, as alleged, and we dismiss the complaint. [n6]

We reject the General Counsel's assertion that, "if the award is ambiguous, the Authority should not have the discretion to
interpret the award, but should require the parties to resort to further clarification from the [a]rbitrator." Opposition at 10 n.2. The
issue before the Authority is compliance with the award and the record provides a sufficient basis on which to make that determination.

Footnote # 3 for
59 FLRA No. 3
- Authority's Dcision

The Respondent's testimony that, subsequent to the award becoming final and binding, the Respondent would exercise its
management rights in determining whether to staff posts or keep them vacant does not, in any manner, constitute an admission that
the Respondent was engaging in the same conduct that the arbitrator found violative of the parties' agreement. In fact, when the
warden was asked whether he had testified that the Respondent would "continue to do what was done before[,]" the warden
replied, "No, I didn't say that. What I said was we would continue to exercise our rights as management officials to determine our
internal security practices, and also to assign work." Tr. at 71. We view this testimony as consistent with BOP, Marianna,
wherein the Authority found that the award "does permit posts to be vacated only for `good cause.'" 56 FLRA at 470. As the warden
further testified, "Our good cause is determined by our internal security practices and our assignment of work." Tr. at 52.

Footnote # 4 for
59 FLRA No. 3
- Authority's Dcision

The following uncontradicted testimony by the warden further illustrates that overtime was used to fill posts that would otherwise
have been vacant:

Q So you did see in fiscal year 2001 a drastic increase in overtime expenditures?

A Yes, we did.

Judge [ ]: Why was that?

The Witness: Well, I review the overtime applications that employees sign every two weeks and my experience has been that
the majority of those are for people that are utilizing their leave, their emergency annual leave or friendly family leave or
friendly medical leave.

Judge [ ]: Using overtime to cover those posts?

The Witness: Basically, yes.

Tr. at 80.

Footnote # 5 for
59 FLRA No. 3
- Authority's Dcision

In this connection, the General Counsel submitted a document purporting to show that posts were being kept vacant to
decrease overtime. When the author of that document was questioned whether the "sole reason for vacating those positions was to
decrease overtime or did you have other factors you considered[,]" the response was that "we were hit at that time with a lot of sick
leave. Training needs were going on and I was still promoting staff moral [sic] for the one and two-day annual leave requests." Tr.
at 122. The witness emphasized that "No[,]" posts were not being vacated solely to decrease overtime. Id. at 123. Also, following
the issuance of that document, the witness testified that overtime expenditures "almost doubled." Id. at 126.

Footnote # 6 for
59 FLRA No. 3
- Authority's Dcision

Subsequent to the issuance of BOP, Marianna, as well as the Judge's decision and the parties' submissions in this case, the
standard for assessing whether an award interferes with management's rights was modified, in part. SeeUnited States Dep't of Justice,
Fed. Bur. of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109 (2002). After finding that an award affects a
management right under § 7106(a) of the Statute, and in order to determine whether the arbitrator's enforcement of a provision
negotiated consistent with § 7106(b)(3) is authorized under the Statute, the Authority now examines whether the contract provision,
as interpreted and enforced by the arbitrator, excessively interferes with the exercise of a management right.

We find it unnecessary to address the effect, if any, of the modified standard on this case because the Authority made no finding in
BOP, Marianna -- and has made no finding in subsequent cases involving arbitral enforcement of the same contract provision --
that the award affected management's right to assign employees. See, e.g., United States Dep't of Justice, Fed. Bur. of Prisons,
Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301 (2003) (BOP, Lompoc) and United States Dep't of Justice, Fed. Bur. of Prisons, Fed.
Corr. Inst., Sheridan, Or., 58 FLRA 279 (2003) (BOP, Sheridan). However, Chairman Cabaniss has expressly found that such
awards affect management's right to assign employees. SeeBOP, Lompoc, 58 FLRA 303 n.5; BOP, Sheridan, 58 FLRA at 284
n.13; United States Dep't of Justice, Fed. Bur. of Prisons, Metro. Det. Ctr., Guayanbo, P.R., 57 FLRA 331, 334 n.1 (2001).